Judge Alito, Conservatism, and Strict Constructionism
by James Hall from the Left
They say that Judge Alito is a good conservative,
a strict constructionist and that makes a good judge for conservatives. The same conservatives that stopped Harriet
Miers cold are said to be delighted with Judge Alito because he has a judicial track record that's conservative and is a 'strict
constructionist,' whatever that's supposed to mean.
Now strict constructionism fits into a
political theory of government that puts judges in their place. It restricts judges from ruling on issues, like abortion
and civil rights, not mentioned specifically in the Constitution and especially limits judges finding rights inherent in the
Constitution. This is a philosophy for those who like to see their issues written in black and white, see principles
as words put down on the page; who distrust shades of grey or the shifting sands of time and change that affect our nation.
Many of these strict constructionists
are also originalists-people who believe we ought to be governed by the opinions and the intent of the founding fathers who
wrote the Constitution. Ironically, the doctrine of strict constructionism is a recent addition to the political debate.
It's first mentioned by candidate Richard M. Nixon as a campaign issue some 30 years ago, as a response to the Supreme Court's
rulings on abortion and civil rights.
For most of our nation's judicial history,
Supreme Court Justices have interpreted our Constitution according to their lights, not according to a strict construction
of the Constitution, whatever that means. Even the basic concept of judicial review, of finding the actions of the other
branches of government constitutional or unconstitutional, isn't found in a strict construction of our nation's Constitution.
In Marbury v. Madison, the early opinion that created judicial review, the Supreme Court's argument was that judicial
review was a concept implicit in the Constitution, not one mentioned literally as a power of the judicial branch.
What keeps our nation whole and healthy
was that these interpretations represented the mainstream opinions of Americans. When the interpretations wandered from
the mainstream, as it did in the Dred Scott decision that upheld slavery, then civil war became the result. When an
extreme court in 1896 upheld the doctrine of 'separate but equal' in Plessy v. Ferguson, then generations of civil
strife and the civil rights movement became the result.
There are troubling elements of the Alito nomination that suggest that
he is well out of the American mainstream. One is Judge Alito's record of ruling for corporations against the interests
of employees, environmentalists, and stockholders. Another is his written comments as a Reagan staffer on undermining
Roe v. Wade, the settled law of the land. A third element has been Alito's reluctance to recuse himself from
cases where he had an financial interest or a relationship with his sister's law firm. He's also been on record as being
against the 'one man, one vote' principle that has been the basis of civil rights in America.
Conservatives should be wary of Alito's view of executive power. In cases
before him, Alito has consistently ruled in favor of the executive's power and against the power of Congress to exercise oversight.
He's ruled in favor of wire-tapping without warrants, for strip-searching ten- year-old girls, and against Congress's ability
to regulate machine guns.
One case where Alito differed from current law is revealing of what the nation
would get with his addition to the Supreme Court. In that case, Judge Alito ruled (in a minority opinion of one), that
state laws could compel women to notify their husbands of their intent to have an abortion. Judge Alito's written opinion
expressed his opinion that such notification would not be a very troubling issue to most women.
At the next level, the Justice that Alito would replace, Sandra Day O'Connor,
strenuously disagreed, arguing that marriage does not take a woman's freedom of decision away from her. Moreover, Justice
O'Connor noted that in many cases women who were in danger from their spouses would have to make contact with them to comply
with the law. For O'Connor and most in the Supreme Court, this was simply too great a burden for the law to require.
This point of view will be lost if and when Justice O'Connor is replaced by
Judge Alito's legal opinions and written opinions place him well outside the
judicial mainstream and the mainstream of American opinion. Americans want judges that reflect their values; not those
who fit into the strange procrustean bed that is called 'strict constructionism.' For that reason, the Senate should
not give consent to the President's judge.
I can see my debating partner pining
away for those heady early years of constitutional bliss, when Indians and women didn’t count and Blacks only counted
three-fourths on the census and only White Men of Property (i.e., like himself) were permitted the vote.
Sorry, SARTRE, Marbury v. Madison is not only enshrined in history; it is part and parcel of American jurisprudence. Marbury gave the Supreme Court an act worthy of its name—the
supreme power to find laws unconstitutional—and made it a branch of government equal to the powers of Congress and the
President, not the weak sibling that some conservatives would have it be now.
Indeed, in an age where the imperial
power of the presidency, ala Nixon, is being reasserted, and a Republican-led Congress exercises no executive oversight and
licks its Master’s Hand, it’s comforting to imagine that there’s a branch of government that might tell
Mr. President ‘no.’
In its proper place, the judicial
branch serves as the American conscience, a branch that has been and should be beyond the petty politics of temporary and
temporizing politicians. Judges, who serve for life, should be concerned with
what is fair, just, and constitutional.
Our founders understood that the greatest
wrongs are sometimes supported by the majority (consider slavery and segregation as two outstanding examples) of the people. When that wrongful majority controls the electoral process and with it, the other
branches of government, who is there to defend the rights of the minority and the helpless but our courts, arguing not for
votes, but for justice and equality before the law.
Not every judicial opinion will be
what’s right or best for America. But the law is self-correcting and our
Constitution inspires us to find the best, fairest outcomes consistent with it. No
bad decision, like Dred Scott’s, long survives such a crucible.
But this makes it imperative that we
choose judges who are intelligent, thoughtful, and psychologically balanced. Judges
with a clear love and appreciation of our nation’s highest constitutional principles and established laws.
Selecting judges with limited intellectual
scope and strict political agendas, whether those judges are conservative or liberal, is always a mistake, and creates mediocrities
like Clarence Thomas, a fine man but a poor Justice. Our highest court deserves
better; our people deserve better; our Constitution deserves better.
This week I hope that the Senate will
throw out the litmus tests, both liberal and conservative, and focus on discovering whether Judge Samuel Alito has the kind
of fine legal mind and judicial temperament that will do the nation proud. If
not, the Senate shouldn’t hesitate to send him back to the president for a better choice.
James Hall, From the Left